Intermediaries, Marketplaces and Take Down Actions

My colleague, Ashwini Arun, brought an interesting post on Spicy IP on SareGama’s take down notice to my attention. The post talks about take down of one of its articles, and may be read at: https://spicyip.com/2019/02/saregama-pa-rdon-me-you-have-the-wrong-address-on-the-perils-and-pitfalls-of-notice-and-takedown.html. It is unfortunate that SareGama decided to include an article from Spicy IP, renowned for its well-researched articles and contributions to IP discourse, in its Take Down list. I am assuming that the inclusion of the link by SareGama was an inadvertent act of one of its Take Down service providers, who automate most of the process and approach taking down links to infringing content mechanically with very little application of mind. If that is not the case and the Take Down was intentional, there is a lot to worry.

Attorneys working in the eCommerce space deal with take down notices on a daily basis, and are well aware of the issues inherent in the Take Down law and practice, if I may call it so. Relatively, Google is a much easier organisation to handle when it comes to either taking down or countering take down attempts. Prima facie, it acts quickly on take down notices as well as counter notices and business bias rarely comes into play. That is however not the case with other intermediaries and marketplaces, where business interests seem to play a role in the take down process.

To cite an example from personal experience, about a year back, I decided to take down all my works from Amazon as I was not convinced with the organisation’s approach to authors, their rights and royalty sharing system. As I had mentioned in my earlier post on Non-Compliance with eCommerce Guidelines, I realized that Amazon’s publishing program amounts to business of licensing, which is prohibited by Section 33 of the Copyright Act. As per a literal reading of the Section, only copyright societies are permitted to carry out the business of issuing or granting licenses and activities of the societies are regulated in order to ensure royalty payments to authors among others. Based on the aforestated and other factors, I decided to take down all my works from Amazon, but the seemingly easy and straight forward take down process turned out to be a night mare.

Taking down each work from the marketplace required several take down requests and legal notices. The first response to most take down notices was generally evasive. The response would either cite insufficient information or lack of proof of ownership. This is despite submitting infringing links and copyright registration details. After about six months of effort, we took down all works only to realize that they keep resurfacing again. As of now, some of my unauthorized works/pages are still on Amazon. After removing books from the marketplaces, taking down book images, description and listing pages took a few more months.

While it is comparatively easy to take down content from search engine indexing and some information/content aggregators, it is relatively very difficult to take down content from marketplaces, whose business revenues and valuation depends on number of products sold on their platforms. More often than not, content owners adopt a mass Take Down strategy after identifying numerous infringing links and hyperlinks using technology, which does not factor in fair dealing/use assessment, and such an action sometimes results in taking down legally valid and non-infringing content like that of Spicy IP. In such an eventuality, it is quite straight forward to counter the take down action and reinstate the content and that is what Spicy IP did. Despite the pitfalls in the process, Take Down law and action has today evolved as an important online infringement control tool, and IP owners use it effectively to bring down the percentage of infringing content and products online.

You may read Dr. Kalyan’s article on Kindle eBooks and Amazon Marketplace here

The views expressed in this article are the author’s personal views and not those of BananaIP.